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Endangered Species

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 Endangered Species Act (ESA) Requirements and the Regulatory Permitting Process

The Regulatory Branch of the U.S. Army Corps of Engineers (Corps) evaluates applications for permits for work in waters of the U.S. [33 CFR Parts 320 through 330; 40 CFR Part 230]. The Corps regulatory program is based on its authorities pursuant to the Rivers and Harbors Act of 1899, the Federal Water Pollution Control Act, as amended (Clean Water Act), and the Marine Protection, Research, and Sanctuaries Act of 1972 (Ocean Dumping Act). At the conclusion of the evaluation process, the Corps decides to either issue or deny the permit for the proposed work.

The Corps permit decision is considered a Federal action that must comply with the Endangered Species Act (ESA). The ESA is administered by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS). NMFS has ESA jurisdiction over salmon, other marine fish, marine mammals, and marine reptiles. USFWS has ESA jurisdiction over birds, terrestrial animals, plants, amphibians, and most freshwater fish. Under Section 7 of the ESA, the Seattle District Corps must consult with the NMFS and the USFWS on its permit program on any permit application for proposed work which may affect threatened or endangered species, or their designated critical habitat. With listings of many fish species as threatened or endangered, the majority of permit applications in the state of Washington will likely involve some elements that require Section 7 evaluation. In addition to fish, other threatened and endangered plants and animals occur in various areas of the state.

Under the Corps' Federal permit program, permit applications must be reviewed for the potential impact on threatened and endangered species pursuant to Section 7 of the ESA. The Corps, through informal and formal consultation procedures with the NMFS and USFWS, must evaluate information on the presence of listed species (including timing and life stages), habitat for such species and their prey sources, and other parameters. The information required for ESA evaluation must be prepared in the form of a Biological Evaluation (BE) which is utilized to assess project impacts to listed, and/or proposed species and designated and/or proposed critical habitat. The Corps will use the BE to determine whether the project may affect listed species or their critical habitat. If the Corps determines that work proposed in the permit application would have no effect on all threatened or endangered species, no further consultation with NMFS and USFWS is required. The Corps has developed guidelines for "No Effect" situations, for both freshwater and marine environments. If the Corps determines that the work proposed in a permit application may affect any threatened or endangered species, some kind of consultation with NMFS and USFWS is required. The two types of consultation are informal or formal.

    a)  Introduction and Background

The Corps permit decision is considered a Federal action that must comply with the Endangered Species Act (ESA). The ESA is administered by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS). NMFS has ESA jurisdiction over salmon, other marine fish, marine mammals, and marine reptiles. USFWS has ESA jurisdiction over birds, terrestrial animals, plants, amphibians, and most freshwater fish. Under Section 7 of the ESA, the Seattle District Corps must consult with the NMFS and the USFWS on its permit program on any permit application for proposed work which may affect threatened or endangered species, or their designated critical habitat. With listings of many fish species as threatened or endangered, the majority of permit applications in the state of Washington will likely involve some elements that require Section 7 evaluation. In addition to fish, other threatened and endangered plants and animals occur in various areas of the state. Under the Corps' Federal permit program, permit applications must be reviewed for the potential impact on threatened and endangered species pursuant to Section 7 of the ESA.

The Corps, through informal and formal consultation procedures with the NMFS and USFWS, must evaluate information on the presence of listed species (including timing and life stages), habitat for such species and their prey sources, and other parameters. The information required for ESA evaluation must be prepared in the form of a Biological Evaluation (BE) which is utilized to assess project impacts to listed, and/or proposed species and designated and/or proposed critical habitat. The Corps will use the BE to determine whether the project may affect listed species or their critical habitat. If the Corps determines that work proposed in the permit application would have no effect on all threatened or endangered species, no further consultation with NMFS and USFWS is required. If the Corps determines that the work proposed in a permit application may affect any threatened or endangered species, some kind of consultation with NMFS and USFWS is required. The two types of consultation are informal or formal.

    b)  Informal Consultation
If the effects of the proposed work on listed species would be beneficial, or the potential adverse impacts are insignificant and discountable, then the Corps determines that the project may affect, but not likely to adversely affect the species or critical habitat. The Corps would then forward the BE to NMFS and USFWS (based on the species affected) and request that they concur with the "not likely to adversely affect" determination. Once concurrence is granted, the consultation process ends. If NMFS or USFWS finds that the project will have significant adverse effects on listed species or critical habitat and can not concur with the "not likely to adversely affect" determination, then formal consultation commences.
    c)  Formal Consultation
If the proposed work may have more than insignificant and discountable adverse impacts to listed species or critical habitat, then the Corps determines that the project may affect, is likely to adversely affect the species or critical habitat. The Corps then refers the BA to NMFS and USFWS (based on the species affected) to initiate formal consultation. NMFS and USFWS prepare a biological opinion (BO) that documents whether the project will jeopardize the continued existence of the species or destroy or adversely modify critical habitat. If the BO finds that the project will jeopardize the species, then the Corps will generally deny the permit. Projects that will not jeopardize the species must comply with the terms and conditions of the BO. Formal consultation ends with receipt of the BO.
 Tools and References
    a)  Templates
    b)  Summary of Federal Register listings of NMFS listed species and critical habitat
 Programmatic Consultations

A Programmatic Consultation is a process where the required Section 7 consultation is conducted by the Corps of Engineers for certain types of work activities. Through the programmatic process, the Section 7 consultation is done "ahead of time" so that when an application for a programmatic work activity is received, the consultation part of the permit evaluation process has already been completed, thus streamlining the permit process.

Some Programmatic Consultations were conducted for the entire state of Washington, whereas others were conducted for a specific geographic region. Please note that the conditions for each activity may vary by region, or the activity may not be approved in certain regions. Therefore, please read this information closely.

These Programmatic Consultations apply to all listed fish species and critical habitat except for the Phase I activities. If other listed non-fish species and/or critical habitat occur in your project area, additional information and an individual Section 7 consultation may be necessary for those species.

If you are not able to design your project to meet the work activity requirements outlined in a Programmatic Consultation, or for activities not covered in the Programmatic Consultation, the Corps will need to conduct the required Section 7 consultation on a individual basis.

    a) Various activities throughout Washington State typically authorized by a Nationwide Permit (Phase I)

Programmatic Endangered Species Act Consultation has been completed for the activities (also known as Phase I programmatic consultations or Phase I) listed below.  Please review the List of Requirements which summarizes the information and limitations in the relevant Programmatic Biological Evaluations (PBE).  If you can design your project to meet all of the requirements of the PBE as shown in the List of Requirements, then the Corps' ESA review of your permit application will be expedited and streamlined. 

 Phase I Activity List of Requirements  Programmatic
Biological Evaluation
 PBE Introduction for 10 Activities Listed Below  -------  pdf
     Replacement of Existing Piling  pdf / WORD  pdf
     Mooring Buoys  pdf / WORD  pdf
     Scientific Measurement Devices  pdf / WORD  pdf
     Minor Bank Stabilization Repair  pdf / WORD  pdf
     Aids to Navigation  pdf / WORD  pdf
     Fish and Wildlife Harvesting  -------  pdf
     Beach and Substrate Nourishment  pdf / WORD  pdf
     Oil Spill Containment  -------  pdf
     Temporary Recreational Structures  pdf / WORD  pdf
     Tideland Markers  pdf / WORD  pdf
 General Conditions for Activities Listed Above  -------  pdf
     


Programmatic Letter of Concurrence, USFWS, October, 20, 2016

Programmatic Letter of Concurrence, NMFS, January 16, 2008

    b) Activities on Lakes Washington and Sammamish

Restoration and Permitting (RAP) Program (formerly called: Integrated Restoration and Permitting Program (IRPP)): This programmatic was formulated and is administered by the National Marine Fisheries Service (NMFS).  If you choose to participate in this program, you must meet all of the requirements by the NMFS including providing them the necessary application information.  You can request the latest NMFS RAP Implementation Guide for Applicants, NMFS forms, and NMFS RAP Calculator by emailing rap-eta.wcr@noaa.gov.

USFWS Programmatic Letter of Concurrence (USFWS PLOC):  This programmatic was formulated and is administered by the U.S. Fish and Wildlife Service (USFWS).  If you choose to be covered by this programmatic, you must meet all of the requirements by the USFWS.

    c) Fish Passage and Restoration Programmatic Consultations

The USFWS extended coverage for the 2008 Fish Passage and Restoration programmatic consultation until August 1, 2024 or until the amount of authorized take is reached. 

On June 21, 2017, the NMFS completed a new Fish Passage and Restoration programmatic consultation (FPRP III).  Please see below to download the full text of this programmatic consultation.

To obtain authorization for restoration activities for NMFS species, applicants do not need to provide a BE/BA.  Applicants must provide a thorough project description including the information described on Appendix A of the NMFS BO for FPRP III (see below), how the project was designed (e.g., engineering reports or designs, stream simulation calculations, etc), and detailed project drawings.

To obtain authorization for restoration activities for USFWS species, please submit a BE/BA describing how your proposal meets the requirements of the USFWS Biological Opinion (BO) dated July 8, 2008 (see below).  When completing your BE/BA, please refer to the Covered Categories of Restoration Actions listed in the BO and describe your project and the conservation measures as they relate to those actions.  Also, include detailed project drawings.     

Reference Documents

    d) Salish Sea Nearshore Programmatic

National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS) has completed a Programmatic Endangered Species Act Consultation (also known as the Salish Sea Nearshore Programmatic or SSNP) for the activities listed below. Please review the applicable List of Requirements which outline the information and limitations of the Biological Opinions (Opinions). If you can design your project to meet all of the requirements of the Opinions (i.e., General Construction Measures (GCM), Project Design Criteria (PDC), and Essential Fish Habitat (EFH) Conservation Recommendations) as shown in the List of Requirements, then the Corps' ESA review of your permit application will be streamlined. Additional resources such as the Conservation Calculator and its User Guide can be found on NMFS’ website.

In addition to ESA Conservation Offsets, the project may require Corps Compensatory Mitigation. See our webpage (link below) for more information on Corps Compensatory Mitigation and Mitigation Plan Requirements.

https://www.nws.usace.army.mil/Missions/Civil-Works/Regulatory/Permit-Guidebook/Mitigation/